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Opinions Aug. 27, 2014

August 27, 2014
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The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louise Cochran, Deceased
49S05-1404-CC-209
Civil collection. Affirms award of $50,440 in attorney fees to the estate from the Indiana Patient’s Compensation Fund. The fee cap provision in the Medical Malpractice Act does not directly apply to the fund to limit its liability. The fund may be required to pay more than 15 percent in attorney fees.

Wednesday’s opinions
7th Circuit Court of Appeals

Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
13-3601
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.

Indiana Court of Appeals
Marquise Lee v. State of Indiana
49A02-1310-CR-869
Criminal. Grants rehearing and affirms Lee’s conviction of Class B felony attempted aggravated battery. Declines Lee’s request to follow the reasoning of the Young panel. Holds that he did not preserve this issue for appellate review and that the trial court did not commit fundamental error when it entered judgment against Lee for attempted aggravated battery as an inherently lesser included offense to the state’s charge of murder.

Thomas Walter Gorski v. State of Indiana (NFP)
03A04-1404-CR-148
Criminal. Affirms 28-year aggregate sentence for Class B felony neglect of a dependent resulting in serious bodily injury and attempted dealing in a narcotic drug as a Class B felony.

Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C. and Golitko Legal Group, P.C. (NFP)
29A02-1308-PL-741
Civil plenary. Affirms that Cohen & Malad is not due quantum meruit compensation from John Daly and Golitko & Daly after Daly took 24 cases with him when he left Cohen & Malad and joined Golitko & Daly.

Jaro Mayda II v. Melinda D. Barnette (NFP)
34A05-1403-CC-101
Civil collection. Affirms order granting Barnette’s motion to dismiss Mayda’s complaint against her alleging fraud, defamation and failure to repay a loan purportedly established by oral agreement.

Latoya C. Lee v. State of Indiana (NFP)
49A02-1310-CR-867
Criminal. Grants rehearing, but declines to reverse conviction of Class B felony attempted aggravated battery.

Layne L. Dellamuth and Anita M. Dellamuth v. Ken's Carpets Unlimited, Inc. d/b/a Carpets Unlimited (NFP)
74A01-1404-CC-165
Civil collection. Affirms summary judgment in favor of Carpets Unlimited on its complaint against the Dellamuths for failure to pay a balance owed on an account.

Evanston Insurance Company and Markel Corporation v. Samantha Meeks Family Practice, Inc., Samantha Meeks, and George Edwin Grant, et al. (NFP)
33A01-1401-PL-32
Civil plenary. Reverses and remands with instructions to deny the summary judgment motion of Meeks and her practice and grant the summary judgment motion of Evanston Insurance and Markel Corp. over whether a policy was in effect when Meeks made her claim.  

Frank Blythe v. State of Indiana (NFP)
49A02-1312-CR-1061
Criminal. Affirms convictions of Class B felonies dealing in a narcotic drug and dealing in a controlled substance.


 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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